NYC ends qualified immunity for police

In 2013, Fresno, Calif., police conducted a raid on two men they suspected were operating illegal gambling machines. Neither was charged, but afterwards the men sued the officers, accusing them of stealing $226,380 in cash and rare coins during the raid. A panel of judges for the 9th U.S. Circuit Court of Appeals agreed “the city officers ought to have recognized that the alleged theft was morally wrong.” But the panel still ruled qualified immunity protected the officers from legal liability.

“At the time of the incident, there was no clearly established law holding that officers violate the Fourth or 14th Amendment when they steal property seized pursuant to a warrant,” the court wrote.

Qualified immunity is a controversial legal doctrine that often shields government officials from civil lawsuits—even when they violate someone’s civil rights. After last summer’s widespread protests and riots against police brutality, many activists called for reforming qualified immunity laws so civilians could more easily sue officers for excessive use of force and other infringements on their rights. On March 25, the New York City Council became the first governmental body to pass such a reform. The council hopes this change will increase officer accountability, but others warn it will endanger communities by making police hesitant to do their jobs.

The Supreme Court established qualified immunity in its current form in a 1982 court case known as Harlow v. Fitzgerald. Since then, courts have used a two-pronged test when deciding whether qualified immunity applies to officials, who can only claim the defense if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Only the Supreme Court or the Congress can abolish the federal protection.

A plaintiff might be able to prove an officer violated his or her constitutional rights, but if that person cannot also show the officer violated clearly established law, the officer can still claim qualified immunity. Practically, to meet the standard, the plaintiff must cite a case with almost identical facts.

Last year, the 5th U.S. Circuit Court of Appeals agreed that a guard using pepper spray on a prisoner unprovoked violated the prisoner’s constitutional rights. But the court said the guard could claim qualified immunity because no previous case law clearly prohibited the conduct, which caused minimal injury to the prisoner. Lawyers cited a case when officers hit and tased inmates without reason, but the court ruled the cases were too different.

New York City’s new law mirrors the Fourth Amendment—asserting citizens’ right against unreasonable search and seizure—then adds protection against excessive use of force, specifying that qualified immunity cannot defend against violations. The law will only govern cases within the city’s jurisdiction: If someone sued the New York City Police Department in state or federal court, the state or federal protection of qualified immunity would still apply.

Jon Moeller is a retired FBI agent, now the chairman of Dordt University’s criminal justice department. He said most officers he knew during his 28-year law enforcement career had some type of civil suit filed against them.

“Although these civil suits were usually dismissed later by the courts, these lawsuits cause an officer’s personal finances to be frozen and affect their financial future,” he said. While accountability is important, he pointed out that it can come in other ways, including criminal charges and administrative actions such as suspension, termination, and decertification.

“The idea of removing an officer’s qualified immunity is a dangerous one,” he said. “Officers often must make split-second, life-or-death decisions where any hesitation can result in serious injury or death to themselves and others. Attempting to deter their bad decisions by attacking them personally is short-sighted.”

Retired NYPD officer Jillian Snider teaches at John Jay College of Criminal Justice in New York City. She noted that even before these reforms, New York City would investigate cases to ensure officers were acting within the confines of their job before arguing for qualified immunity for them. She also pointed out that the city—and thus its taxpayers—will bear the cost for the increased lawsuits this new law could mean for police officers. While the law allows plaintiffs to name individual officers in civil suits, Mayor Bill de Blasio ensured the officers would not be held financially responsible for damages. He said opening up officers to that kind of financial harm would make recruiting police impossible. Snider said making it easier to sue officers could do that anyway: “I think it’s going to have a significantly negative effect on morale of the police department.”